Terms2017-12-04T16:32:01+00:00

General Terms and Conditions of Delivery and Payment

Effective as of January 2015

  1. These general terms of delivery and payment (T&Cs) apply to all current and future business relations between medwork GmbH (“we”) and you (“Purchaser”). We explicitly do not recognize any terms and conditions of the Purchaser which are contrary to or different from those in our T&Cs unless we have explicitly agreed to their application in writing. Our T&Cs also apply if we make delivery to the Purchaser without reservation despite our knowledge of contrary terms or terms of the Purchaser which deviate from our T&Cs, in particular, the acceptance of deliveries or services by the Purchaser is deemed to be recognition of our T&Cs.
  2. These T&Cs apply to an entrepreneur who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession as well as to a legal entity under public law as well as a special fund under public law but does not, however, apply to consumers. It is also explicitly stipulated that these T&Cs therefore apply to hospitals of any legal form and to registered physicians.
  1. Our quotations are without obligation and subject to confirmation insofar as they do not stipulate otherwise; only the order of the Purchaser is to be considered a quotation in terms of Section 145 of the German Civil Code (BGB). Orders can be accepted by us within four weeks and are binding for this time.
  2. The purchase contract is concluded by our written order confirmation (which can also be made by fax or e-mail or in another electronic form); acceptance can furthermore be declared by means of delivery without reservation.
  3. Subsequent amendments or additions to a contract require our new confirmation of the order to be effective or the explicit written confirmation or approval by our sales management. Oral agreements, amendments or additions to these T&Cs (special conditions) and ancillary agreements require the explicit written confirmation or approval by our sales management.
  4. We reserve all ownership rights and copyrights for illustrations, drawings, calculations and similar documentation. They may not be made accessible to third parties in whole or in part without our prior written approval. This applies particularly to documentation designated as confidential.
  5. We are entitled to make changes which are appropriate and customary in trade to the goods taking into account the interests of the Purchaser.
  1. Insofar as our order confirmation or another explicit written agreement does not stipulate otherwise, our prices apply to deliveries “from stock” in Höchstadt, Germany (which corresponds to “EXW” in terms of the particular valid and current Incoterms). The packaging will be invoiced separately.
  2. If not explicitly agreed otherwise, the prices stated in our order confirmation apply. If no order confirmation was issued or it contains no price information, then the prices in the current price list sent by us (at the time of ordering) apply. The deduction of a discount requires explicit agreement.
  3. We reserve the right to change our prices if unforeseeable cost reductions or cost increases occur after the signing of the contract (actual changes in wage, energy, raw material and material costs). This does not apply if we are responsible for increases in costs or these result from circumstances for which we are culpable. The adjustment of prices will be made in proportion to the change of total costs (in the amount of the proportional share in the price of the cost factor cited). If the agreed delivery time is more than four months, our valid general list prices at the time of the agreed delivery apply.
  4. Statutory VAT applies in addition to our prices in each case. This will be documented separately on the invoice.
  5. If not stipulated otherwise in the agreements made or in the order confirmation, the purchase price is due without any deduction upon notification of the readiness of the goods to be shipped. If there is no such notification, the purchase price is due immediately upon receipt of the invoice. We are entitled to demand maturity interest as of the due date in the amount of 5 % per year.
  6. The Purchaser is in default if payment is not made when we issue a reminder after the purchase price is due. The Purchaser is also in default without a reminder if payment is not made at a contractually agreed particular calendar date for payment due or within 30 days after payment is due and the invoice is received. If the Purchaser is in default of payment, then we are entitled to demand default interest in the amount of eight percentage points above the per annum base lending rate published by Deutsche Bundesbank. If we are able to prove greater damages due to the default, then we are entitled to claim these accordingly. However, the Purchaser is entitled to prove to us that we have suffered no damages or significantly lesser damages as a consequence of the default of payment.
  7. If the Purchaser is in default of payment or his financial circumstances become significantly worse or judicial or extrajudicial settlement or insolvency proceedings or comparable proceedings according to foreign laws are requested or opened against the Purchaser, then we are entitled to declare all receivables from the Purchaser to be due and payable immediately.
  8. The Purchaser is entitled to offset payments only if the counterclaims of the Purchaser have been established as legally binding or are undisputed or acknowledged by us; the same applies for the exercise of rights of retention.
  1. If not otherwise stipulated in the order confirmation, delivery is agreed “ex stock Höchstadt, Germany”. The risk of damage or loss of the goods is transferred to the Purchaser at the time of handover of the goods to the shipping company, forwarder or other person designated for transport.
  2. We will arrange transport insurance for the delivery upon written request by the Purchaser. The Purchaser shall bear the costs for this.
  3. We are entitled to make partial deliveries if this is reasonable for the Purchaser, particularly if these are usable by the Purchaser, the remaining delivery is ensured and the Purchaser is subject to no significant additional effort or costs as a result.
  4. The beginning of the delivery period specified by us requires that all necessary questions regarding the specific order be resolved.
  5. Compliance with our delivery obligations requires the timely and proper fulfillment of the (due) obligations of the Purchaser insofar as the Purchaser is obliged to advanced performance in this respect.
  6. We are only in default if the delivery of the goods or services is due and, except in cases where Section 286 Paragraph 2 of the German Civil Code (BGB) applies, we do not deliver after an explicit written reminder by the Purchaser with appropriate grace period notification (particularly with regard to the originally agreed delivery date) and a warning of refusal to accept delivery. Upon expiry of this grace period without success, the Purchaser is entitled to withdraw from the contract. Subject to the limitations set forth in Clause 7 below, we are liable to the Purchaser in accordance with the statutory provisions if the contract is a transaction at a fixed date (“Fixgeschäft”) or the Purchaser is entitled to rely on his disinterest in continuing fulfillment of the contract as a consequence of delivery default for which we are responsible.
  7. If the Purchaser is in default of acceptance or violates other duties of cooperation, then we are entitled to demand compensation of the arising damages including any additional expenses. In this case, the risk of accidental loss or deterioration of the purchased goods transfers to the Purchaser no later than at the point at which the Purchaser is in default of acceptance.
  8. Our obligation to deliver is subject to the condition of proper and timely delivery by our suppliers unless we are responsible for the incorrect or late supplier delivery. If we are hindered in delivery and/or compliance with the agreed delivery schedule for reasons which are not our responsibility or due to events of force majeure such as fire, mobilization, war, civil unrest, strikes, lockout, extreme weather conditions, floods, export limitations or the occurrence of other unforeseen obstacles or obstacles which cannot be overcome by reasonable effort (regardless of whether this circumstance affects us or our suppliers), then the delivery schedule will be changed to a suitable time period. We will inform the Purchaser of the beginning and end of such obstacles without delay. If this results in the delivery being delayed by more than one month, we and the Purchaser are both entitled to withdraw from the contract with regard to the goods affected by the obstacle, with the exclusion of all further claims.
  1. The Purchaser only has a warranty claim if the goods have been inspected with regard to quantity and condition by the Purchaser without delay after receipt (i.e. apparent defect), insofar as this is possible in the orderly course of business, and we are notified in writing of any apparent defect found without delay, no later than within four working days. Damages from transport are to be claimed by the Purchaser with the shipping company immediately after receipt of the shipment. If a defect becomes apparent later (i.e. a hidden defect), the Purchaser must report the defect without delay after its discovery; otherwise the goods are considered to be accepted even with consideration of this defect. Section 377 of the German Commercial Code (HGB) applies to commercial transactions when both parties are merchants. Sending within the period is sufficient to comply with the deadlines. Section 478 of the German Civil Code (BGB) remains unaffected.
  2. In case of a complaint of a defect, the Purchaser must provide us without delay with the opportunity to inspect the goods subject to the complaint; at our request, the goods in question or parts thereof must be made available to us at our cost. If the complaint made is unfounded, we are entitled to demand reimbursement by the Purchaser of our costs incurred in the matter (including freight, processing and inspection costs). The burden of proof lies with the Purchaser for all qualifying conditions of warranty claims, particularly for the defect itself, for the time when the defect was detected and for timely notice of defects.
  3. All goods delivered to the Purchaser by us which show a material defect during the term of the warranty period are to be repaired or redelivered (subsequent performance) without charge within an appropriate period as we choose, taking into consideration the interests of the Purchaser, insofar as the defect and/or its cause was already present at the time risk was transferred and was properly reported to us. The Purchaser must give us a suitable period, at least 30 days, to remedy the defect. The Purchaser can choose to withdraw from the contract or reduce the purchase price appropriately only after the subsequent performance has failed conclusively or the suitable time to be set by the Purchaser for subsequent performance has elapsed without success or is dispensable according to statutory provisions.
  4. The warranty period is one year after delivery of the goods. This does not apply if, according to Section 479 of the German Civil Code (BGB) (recourse claims), the law prescribes longer periods. The present limitation period also applies for contractual and noncontractual claims on the part of the Purchaser for compensation of damages resulting from a defect in the goods, unless the application of the regular statutory limitation period (Sections 195 and 199 BGB) would lead to a shorter limitation period in the individual case. The statutory limitation periods remain unaffected with regard to liability according to product liability law as well as in cases of malicious intent, gross negligence, guarantee, fraudulent intent and injury to life, limb or health.
  5. Further claims or claims other than those governed by this Clause 5 of the Purchaser with respect to us and our vicarious agents due to a material defect are excluded; in particular, the Purchaser can demand no compensation for futile expenses. However, if the defect is due to fault on our part, the Purchaser can demand compensation for damages according to the provisions of Clause 7 below.
  6. The Purchaser is obliged to stop using and/or selling the goods without delay if defects are found.
  7. The overwhelming majority of our goods are medical devices. We explicitly indicate herewith that, due to biological differences in each patient, the effectiveness of our medical devices cannot be guaranteed without limitation. Conditions of use, such as diagnosis and indications, handling, storage, cleaning and sterilization of the medical device as well as factors related to the patient, treatment, surgical methods and other circumstances have a direct influence on the medical device and the results of its use. These are not under our control. Success cannot be guaranteed, and secondary effects or complications cannot be excluded, particularly those due to improper use and with regard to special issues specific to the patient. We are not liable for resultant damages or expenses insofar as these result directly or indirectly from the use of the medical device (and there is no culpable behavior on our part and/or no liability according to product liability law or due to breach of a guarantee or promise). There is explicitly no assumption of liability or guarantee for reprocessed or resterilized disposable products; in the case of reprocessing and/or resterilization of disposable products, the warranty is null and void.

We accept the return of goods above and beyond existing statutory or contractually agreed obligations under the following (cumulative) conditions:

  • only articles of the regular assortment
  • up to 30 days after the date of invoice
  • only reusable/marketable, unused goods (no disposable products) with undamaged packaging or defective goods
  • a good’s value (net invoice price) of the goods to be accepted when returned (in good order and condition) amounting to at least €150

The Purchaser is responsible for freight charges for the return as well as hazards and risks of the return shipment. For the return of the goods in proper condition we charge a fee amounting to 25% of the net invoice price (reprocessing charges), at least €150 (net). Defective goods are credited without deductions. Rights of warranty for defects according to Clause 5 also remain unaffected.

  1. Our liability for compensation of damages, regardless of legal grounds, in particular due to impossibility, non-fulfillment of the contract, delay, defective or incorrect delivery, breach of contract and unpermitted action is limited, insofar as it depends on fault in each case, according to the provisions of this Clause 7.
  2. We are only liable for compensation of damages in the case of malicious intent and gross negligence, the absence of a promised characteristic, the assumption of guarantees or a purchasing risk as well as in the case of bad faith.
  3. For slightly negligent breaches of duty, we are liable only for damages arising from the breach of a significant contractual obligation (obligation where the proper performance of the contract is only possible if it is met and on which the Purchaser usually relies and may rely on its being met). In this case, however, our liability is limited to compensation of foreseeable damages which are typical for the contract and directly occur as a result of said breaches. We are not liable for other slightly negligent breaches of (inessential) contractual duties.
  4. Insofar as our liability is excluded or limited according to reason and/or amount, such limitation or exclusion of liability also applies to the personal liability of our employees, workers, legal representatives and vicarious agents. In cases of gross negligence by ordinary vicarious agents and by non-managerial employees, we are liable for compensation of the typical, foreseeable damages.
  5. Insofar as this Clause 7 does not explicitly stipulate otherwise, further claims on the part of the Purchaser – on any legal grounds – and/or any other or further liability, including for compensation of damages, for consequential damages resulting from defects, for loss of profit or other financial losses, are excluded.
  6. The preceding provisions and/or limitations of liability of this Clause 7 do not apply to liability according to product liability law nor to injury to life, limb or health.
  7. Statutory provisions regarding the burden of proof remain unaffected by the limitations of liability in this Clause 7.
  1. The objects of the deliveries (Reserved Goods) are delivered subject to extended and expanded retention of ownership and therefore remain our property until all claims on our part against the Purchaser which arise from the business relationship are met (in particular any current account deficits). This also applies if individual receivables or all receivables of us were included in an open account and the balance is drawn upon and acknowledged.
  2. Any processing or alteration of the Reserved Goods by the Purchaser will always be performed for us as the manufacturer, but without us incurring an obligation. If the Reserved Goods are processed or combined with other objects not belonging to us, we acquire co-ownership of the new product in the ratio of the value of the Reserved Goods to the other processed/combined objects at the time of the processing/combination. If our ownership ceases to exist by the combination or processing, then it is agreed herewith that the ownership of the Purchaser in the unified material is transferred to us proportionally according to value (invoice value). The Purchaser will maintain the (joint) property thus arising for us without charge. Goods which are co-owned by us are also Reserved Goods in terms of this Clause 8.
  3. In the case of contractual violations by the Purchaser, in particular in the case of default or delay in payment, we are entitled to take back the Reserved Goods, and the Purchaser is obligated to their surrender.
  4. The Purchaser is obligated to handle the Reserved Goods with care. At our request, the Purchaser is obligated to insure the Reserved Goods appropriately for their new replacement value at the expense of the Purchaser. Insofar as maintenance and inspection work are required, the Purchaser is obligated for their timely performance and must bear the costs thereof.
  5. During the period of effect for retention of ownership, the Purchaser is prohibited from pledging or assigning the Reserved Goods as security. In the event of attachments, seizures or other dispositions or interventions by third parties, the Purchaser must inform us of these without delay.
  6. The Purchaser is entitled, in the usual course of business and subject to the Purchaser’s usual terms of sale, to sell the Reserved Goods as long as the Purchaser is not in default of payment or has not stopped payments or there is not a request filed to begin insolvency proceedings and/or comparable proceedings against the Purchaser according to foreign laws. However, the Purchaser already assigns to us upon the conclusion of any contract of sale all (future) accounts receivable (including any VAT) in the full amount or in the amount of any co-owned share, which Purchaser has as a result of the resale of the Reserved Goods. The same applies for other receivables concerning the Reserved Goods (e. g. insurance benefits).
  7. Even after the assignment, the Purchaser continues to be authorized to collect the assigned receivables in his own name on our account. However, our right to collect the receivables ourselves remains unaffected by this. As long as the Purchaser meets his obligations for payment, is not in default of payment, and no request has been filed to begin insolvency proceedings and/or comparable proceedings according to foreign laws against the Purchaser or the Purchaser has not otherwise stopped payments, we undertake, however, not to collect the receivables ourselves. Should one of the aforementioned cases arise, we are permitted to revoke the authorization to collect and disclose the assignment to the customer of the Purchaser.
  8. Upon our request, the Purchaser is obligated to make known to us the assigned receivables and the third party debtors from which they are due, to inform the third party debtors of the assignment and to provide all information necessary for collection, to make all information available and to surrender the associated documentation necessary for us to exercise our rights arising from the retention of ownership with respect to the customers of the Purchaser. We are entitled to inspect the corresponding business records of the Purchaser insofar as this serves the purposes of collection for the assigned receivables, and to make copies thereof
  9. If the realizable value of our securities exceeds the receivables to be secured by more than 20%, upon request of the Purchaser we will release a corresponding part of the securities to which we are entitled. We have the choice of the securities to be released.
  10. If the preceding provisions for retention of ownership are not (fully) valid according to the legal system of the relevant country for this matter, then the Purchaser is obligated to engage in efforts to ensure that we are given security rights which are as similar and equal as possible (such as a letter of credit, at least extended retention of ownership) and which correspond to the requirements of the relevant country.
  1. The place of fulfillment for delivery is our shipping point (the location of the delivery warehouse) in each case, and for payments it is our registered office.
  2. The laws of the Federal Republic of Germany apply to these T&Cs and all legal relations between us and the Purchaser, with the exclusion of international private law. The provisions of the UN convention on contracts for the international sale of goods in the corresponding valid version do not apply.
  3. The normal course of legal proceedings applies. If the Purchaser is a merchant, the place of jurisdiction is the locally competent court for our registered office. However, we are entitled to take action against the Purchaser at any other legally permitted place of jurisdiction as well.
  4. Insofar as we provide information and consultation, this does not release the Purchaser from the obligation to review matters on his own. This particularly applies to information regarding suitability and the use of goods for particular processes and purposes.
  5. Should a provision of the respective purchase contract be or become invalid, this does not affect the effectiveness of the rest of the contract. The parties will agree to a new, effective provision for the invalid one, with the new provision being as close as possible to the intended legal and economic purpose upon signing of the contract.
  6. The rights of the Purchaser arising from business conducted with us may not be assigned. We are entitled to assign to third parties all accounts receivable which are due to us from the Purchaser and to communicate the necessary data for this to the assignee.
  7. Should we refrain once or repeatedly from asserting or enforcing claims or rights arising from a contract or one of the conditions or provisions of these T&Cs or even waive once or repeatedly the compliance or fulfillment of individual contractual obligations or conditions, this does not constitute a general waiver of the corresponding claims, agreements or other conditions and does not result in their ineffectiveness and in particular does not adversely affect our right to assert the claim or right in the case of further violation of duties by the Purchaser.

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